Defence Reform Bill

Baroness Stern Excerpts

Wednesday 5th February 2014 Grand Committee

[Lord Hodgson of Astley Abbotts (Con)]

My Lords, in moving Amendment 10, I will speak at the same time to Amendment 11. I have tabled a series of amendments to the Bill, which I have formed into two groups: this one and a second group comprising Amendments 14, 15 and 16, which we shall come to later on. The purpose of both groups is to shed light on an issue that is causing rising public concern: the increasing use of what have been variously called “drones”, “unmanned aerial systems”, and “remotely piloted aircraft systems”. I would argue that the fact that there is no agreed terminology to describe these devices is an indication of the very rapid rate of change and development taking place and, perhaps, of the extent to which the appropriate level of democratic oversight, control and challenge is lagging behind.

It was interesting to note the amount of public and press interest—including international press interest—when I tabled these rather modest amendments to be debated in the Moses Room, which shows that this is a very live issue for many of our fellow citizens. At this stage, these are all probing amendments, but there are serious issues of public policy at stake about which I hope my noble friend will be able to reassure all Members of the Committee. I am grateful to my noble friend Lady Miller of Chilthorne Domer, the noble Baroness, Lady Stern, and the noble Lord, Lord Dubs, who put their names to these amendments. I look forward to hearing their particular concerns and contributions later in the debate.

As I said, there are two groups of amendments, but they focus on one issue. I will give some general background which will set both groups in context and enable me to be a great deal briefer when we come to the second group. Finally, before doing so, I need to declare for the record my interests in this and allied fields. I am a member of the APPG on Drones, I am treasurer of the All-Party Group on Extraordinary Rendition and I am a trustee of Fair Trials International. With that—to horse.

Public concern about drones takes, I think, two forms. The first lies in what one might describe as the here and now. The public are concerned about the collateral damage arising from what appears to be an increasingly prevalent—some would say indiscriminate—use of drones. To illustrate, I can do no better than to quote from a letter sent to all Members of your Lordships’ House by Reprieve. It describes a trip to Congress in the United States by Rafiq ur Rehman, a schoolteacher from Pakistan, who was accompanied by his children Zubair, 13, and Nabila, nine. The family were there to talk about 67 year-old Mammana Bibi—Rafiq’s mother, the children’s grandmother and the local community’s midwife. She was killed by a CIA drone strike in October 2012 while picking okra in a field near her home. Zubair and Nabila were also injured when the missile hit and had to be treated in hospital for shrapnel wounds. Speaking to members of Congress on Capitol Hill, Rafiq described his mother as follows:

“She was the string that held our family together. Since her death, the string has been broken and life has not been the same … My family no longer gathers together like it did when my mother was alive … they are afraid to visit because the drone might then kill them, too”.

I leave it to wiser heads than mine as to whether this is a good way to win over uncommitted hearts and minds.

Drones do not act in a vacuum—they act on information supplied to them. The public are anxious to know who is supplying this information and how it is being supplied. The legal context may be simply stated—and, in saying that, I am benefiting from advice given by Jemima Stratford QC. Individuals in a war are entitled to kill each other. That is the doctrine of combatant immunity. In addition, both the law in this country and international law recognise the status of some individuals as lawful combatants engaged in international armed conflict. However, killing an individual outside that framework is, to put it starkly, murder. Assisting in the killing of an individual outside that framework is assisting in an act of murder. The recent killings by drone strikes in Yemen and Pakistan, neither of which is at war with the United Kingdom or the United States, have increased public concern.

That is the here and now. However, public concern is beginning to take on another form. What does the future hold? This year we are commemorating the outbreak of the First World War, 100 years ago in the autumn of 1914. When the young men rushed enthusiastically to the recruiting offices that autumn, they had no real understanding of the killing power of the modern machine gun. If they had, there were fears that their enthusiasm might have been somewhat tempered. We, however, know about the capabilities of the machine gun and the capabilities and consequences of the atom bomb. Moreover, with the technical developments in television, by the 1970s war was being brought into our front room.

Some of you may recall an American singer-songwriter and satirist called Tom Lehrer who was also a professor of mathematics at Harvard University. He said that for the next war, the songs must be written in advance. His contribution went like this, although I shall not sing it:

“So long, Mom, I'm off to drop the bomb

So don't wait up for me

But while you swelter down there in your shelter

You can see me on your TV

While we’re attacking frontally

Watch Brinkley and Huntley

Describing contrapuntally

The cities we have lost

No need for you to miss a minute

Of the agonising Holocaust”.

Humorous though the song was, that trend has been accentuated by the development of the mobile phone—and especially of the mobile phone with inbuilt camera. As a consequence, for quite understandable operational reasons, the Armed Forces have put restrictions on mobile phones on the battlefield.

Here lies the first critical point. The camera and the mobile phone are, in their own way, rather effective peacekeeping devices. The Holocaust occurred off-camera. Today, however, if a soldier fires a shot and it’s on the “BBC News” that night, our political process—albeit slowly, imperfectly and often in the wrong way—begins to engage. Had there been pictures and tweets about the carnage in the autumn of 1914, how long would the war have lasted?

Here lies the second critical point. That door to the free flow of information—arguably so important to the preservation of peace—is slowly swinging shut. A drone is entirely anonymous. It needs no boots on the ground. Yet the damage it does is no less devastating than that done by the man with a machine gun. These amendments therefore are designed to shed some light on these slightly murky points. As the Prime Minister said, sunlight is the best disinfectant.

After those background comments, I turn to this first group, concerned with jurisdiction and seeking to make amendments to Clause 5, entitled “Jurisdiction of Ministry of Defence Police”. The Ministry of Defence Police Act was passed in 1987. That may seem fairly ancient—it is some 25 years old. However, it is a mere stripling in comparison to the Visiting Forces Act that we shall come to in a minute, which was passed more than half a century ago in 1952, or the status of forces agreement passed a year earlier.

Amendment 10 extends the jurisdiction of the Ministry of Defence Police by inserting after the word “hovercraft” additional words about,

“unmanned aerial systems, distributed common ground systems, ground control and other stations”,

as on the Marshalled List. The purpose of the amendment is simple. It is to ensure that drones cannot be included as a type of aircraft, and to recognise that they have an entirely separate legal distinction and terminology. The amendment selects the phrase “unmanned aerial systems” as a preferred descriptor. While I have no biblical adherence to this phrase, there is the challenge that there is no current legal definition of “aircraft” in the existing Air Navigation Order 1970; it contains only a classification.

Whatever descriptor is used, it is nevertheless important that it makes clear that a drone is not an aircraft—a word which, to the public mind at least, implies an aerial vehicle with at least one person inside it. The effect of this amendment would be that the MoD Police jurisdiction unquestionably extended to drones and the like, so they would not in future fall through the gaps in legislation to some netherworld, out of sight and mind. Amendment 11 runs in parallel and extends the power of the MoD Police to contractors operating under the provisions of the Bill—as we discussed in Committee on Monday.

To conclude, whatever one’s views of the morality or efficacy of drones, we need to ensure that the details of their operations are properly recorded and that the MoD Police are unquestionably able to investigate and follow up issues that arise. In an editorial in the Financial Times on Monday—the first day of Committee —about Edward Snowden and GCHQ, a parallel but not identical case, the editor wrote that,

“it is essential the public know that British law is up-to-date and that the checks surrounding GCHQ are proportionate and fit for the complexity of the digital age”.

These amendments seek to achieve the same in respect of the Ministry of Defence: that the law is up to date and the checks proportionate. I beg to move.

[Baroness Stern (CB)]

My Lords, I am very grateful to the noble Lord, Lord Hodgson, for that excellent and wide-ranging exposition. I begin by declaring an interest; I am one of the vice-chairs of the All-Party Parliamentary Group on Drones, established just over a year ago in October 2012 and very active ever since. The core purpose of the group is to examine the uses of drones—which the group decided to call “unmanned aerial vehicles”—by Governments for domestic and international military and civilian purposes. Among the objectives of the group are to examine the legal and ethical frameworks that govern the use of drones, raise awareness of the human rights issues in the use of drones and look for increased accountability and transparency in the use of drones by the United Kingdom domestically and internationally. It is in that context that, as a member of the all-party group, I put my name to these amendments.

I stress absolutely that the all-party group is not opposed to drones per se—far from it. Drones technology has many uses. I heard recently from my noble friend Lord Sandwich that drones are a godsend to archaeologists in Afghanistan because they can locate what is under the ground and pinpoint where archaeologists should dig to find more antiquities. That is a benign and helpful application of the technology. My noble friend Lord Ramsbotham—General Ramsbotham—has educated me about the indispensable role of drones on the battlefield. The APPG is concerned not with opposing drones but with transparency: ensuring that Parliament is well informed and that information about the development and use of drones is put in the public domain so that we may debate the many issues that arise.

Today, we are concerned with military use. As noble Lords will know, a large and wide-ranging law framework governs military activities and weaponry internationally and domestically. However, as the noble Lord, Lord Hodgson, said, as yet no legal definition exists of drones or unmanned aerial systems, and it is difficult to see how there can be governance of drones before they are defined. Currently they are treated by the MoD as aircraft and their special nature is ignored. This amendment gives us an opportunity to consider the terminology and make it clear that it is completely inadequate to lump drones in with aircraft.

--- Later in debate ---

[Baroness Miller of Chilthorne Domer]

I do not think we are discussing the other issues at this moment, so I shall return to the matter of the debate. The fact is that Parliament has time and again raised this issue. Indeed the Defence Select Committee in another place also raised it. In October 2004, a number of changes of use at Menwith Hill were put through as Written Statements prompting the Defence Select Committee to tell the then Secretary of State, Geoff Hoon, that:

“Despite the Secretary of State’s unequivocal statement that he wanted the decision to be informed by public and parliamentary discussion, he has acted in a way that has effectively curtailed such discussions”.

It went on to recommend full parliamentary debate of the proposals. There were none. In January 2008, my noble friend Lord Wallace of Saltaire spoke about how much Menwith Hill remains subject to British control and said that he was,

“extremely unhappy about the extent to which it remains effectively under British sovereignty”.—[Official Report, 10/1/09; col. 987.]

There is a long history of Parliament being left in ignorance on this issue. I do not know the reason for that. Was it because Secretaries of State did not know what was going on there or chose not to let Parliament know? However, the fact remains that the legislative framework applies to UK operators and all communications between the UK and abroad. We now have the Regulation of Investigatory Powers Act, which was brought in to cover some of these advances in technology. It will not come as a surprise to Members of the Committee that, under the framework, authority and warrants must be given if anything is to be done that would interfere effectively with the private lives of UK citizens. We need to know that what happens on UK soil, whether it is done on American bases or by people in the UK, is covered in the same way. That is the point of these amendments. In Amendment 15, we would give responsibility to an individual to ensure a reporting mechanism. My noble friend Lord Hodgson already referred to what an unenviable position that might be.

We have a heavy responsibility here to make sure that the very unsatisfactory state that has continued for decades comes to an end. In last week’s State of the Union address, President Obama promised to work with the US Congress to reform surveillance programmes. All we suggest in these amendments is that we in the UK Parliament play our part in making surveillance accountable. I fully accept the need for a security programme but of course I am equally concerned about where the lines are drawn and whether GCHQ overstepped its remit. At least I am assured that GCHQ has a line of accountability to the Government and our Ministers, and appears before committees of Parliament. In the case of the visiting forces, that is something we can remedy by amending the Bill as we suggest. I strongly feel that that needs to happen.

To conclude, when in 1994 Bob Cryer brought up the worry about these developments at Menwith Hill, the then Minister, Mr Hanley, said that,

“what he peddles is ill-informed, second-hand fantasy based on prejudice against our allies which in itself is not in the national interest. His colourful language may well make good sound bites, but it is pathetic in its paranoia”.—[Official Report, Commons, 25/3/94; col. 616.]

Since then, Mr Cryer’s worries have proved to be absolutely sound. It is our duty today to put in place very belatedly these amendments that would ensure full accountability.

[Baroness Stern]

My Lords, it is a privilege to follow the noble Baroness, Lady Miller, who has been so determined in pursuing this over a long period. I shall try to be brief. I will begin by bringing to the attention of the Committee a very short passage from the Ministry of Defence Joint Doctrine Note. It quotes General Robert E Lee:

“It is well that war is so terrible—otherwise we would grow too fond of it”.

That seems a very well chosen quotation in light of the development of war that is remote, unpiloted and rather like a video game.

These amendments take us into the area of ensuring lawfulness through requiring reporting on the activities of contractors and visiting forces. We aim by raising this matter to ensure that there is a debate on the existing scrutiny arrangements and the need to update them in the light of the widespread use of unmanned aircraft systems and future developments. I am grateful to the Minister for cleaning up my language; I will now say at all times “unmanned aircraft systems”, and I can see he is happy with me because he is smiling. It is not to suggest for one moment that what our Armed Forces are doing is unlawful. I am sure that it is not, and I am sure that the noble and gallant Lord, Lord Stirrup, was right about having his lawyer with him all the time. I do not doubt any of that for a moment.

The doctrine note that I have just mentioned deals with matters of lawfulness, ethics and humanitarian law in chapter 5. The note begins by saying:

“Signatories to the Geneva treaties are required to review all new weapons, methods and means of warfare to determine their compliance with applicable law”.

I am sure that the Ministry of Defence has done this in respect of unmanned aircraft systems, and I would be grateful to have from the Minister an indication of how and when that was done and where Members of Parliament have access to reading about such a review.

The note also says:

“There are elements of the LOAC”—

the law on armed conflict—

“that have specific consequences for unmanned aircraft, as compliance will become increasingly challenging as systems become more automated”.

I was very interested and glad to hear the Minister say that we are not going to become more automated and use unmanned systems without human agency. I am sure that many noble Lords here today will be glad to see that on the record.

I take this opportunity to congratulate the Minister and his department on the doctrine note, which is admirable in its clarity, its adherence to international law and the thoughtful way in which it raises the implications of these technologies for war in future and the impact on our humanity and value systems. I assume that the document has been shared with our American partners.

In June 2013, I asked the Government a Written Question on,

“what assurances they have received from the United States that it will not conduct activities from United States bases in the United Kingdom that violate international law”.

In reply, the Minister said:

“The use of bases in the UK by the United States visiting force remains subject to long-established agreements and procedures which ensure that the UK Government are fully satisfied as to the propriety of any US activity undertaken”.—[Official Report, 12/6/13; col. WA245.]

Will the Minister indicate what the long-established agreements are—I imagine that they are in the public domain and we know what they are—and the procedures? Can he tell the Committee whether he is satisfied that these “long-established agreements and procedures” are up to date and capable of dealing with the developments that we are discussing today?

The noble Baroness, Lady Miller, set out very cogently the concerns about why we need such arrangements—the forms of monitoring and oversight such as those proposed in the amendments. Bodies to ensure that the law is being followed are a normal part of our public administration. The IPCC scrutinises the police and Her Majesty’s Chief Inspector of Prisons inspects the prisons, just as the Care Quality Commission inspects hospitals, and so on. The area of defence weaponry and its uses is also subject to law—domestic, international and humanitarian. Machinery to ensure that the law is adhered to can bring great benefits in informing the public, counteracting ill informed speculation and strengthening the hand of all those in the system who want to operate within the law but may find themselves in a culture where there is no pressure to do so because there is no scrutiny and no chance of a comeback. I hope that this debate marks the beginning of a wider discussion of these important questions.